Losing is never easy. It was not easy when we were children. And it is not necessarily any easier now that we are adults even if, with some perspective and life experience behind us, we are better equipped to deal with the disappointment.
Although I have never seen this written down anywhere, I have always assumed that the proper etiquette between opposing lawyers after a verdict has been delivered is for the loser to approach the winner. Although ideally both sides would approach each other, the impetus should come from the loser. After all, a winner who is too enthusiastic in approaching the loser risks coming across as self-satisfied or as gloating. And, precisely because it is so difficult to lose, there is nothing classier than a gracious loser. Congratulations. Good job. Well-fought.
The problem I see is when lawyers personalize things. Yes, for clients on both sides, the outcome of the case is very personal. But that doesn’t mean that the lawyers themselves need to take it personally. In fact, a little more distance from the client’s objectives, at least in this respect, might be a good thing. You did your best. You lost. Now move on.
There was a prosecutor in Philadelphia named Peter Salib that I was particularly fond of. We had been classmates at law school, summer interns at the DA’s and PD’s offices, respectively, and we each began our jobs right out of law school. Salib was tough as nails and very prosecution-minded. But he was also fair. You could expect him to abide by the rules. And he always seemed able to keep things in perspective.
Through sheer happenstance, there was one defendant in particular that he and I fought over numerous times. In one case, I was able to get the charges thrown out at the preliminary hearing. He succeeded in having the charges re-brought, with the defendant ultimately convicted. It was, I thought, a friendly but professional relationship. We didn’t take anything personally. In fact, each of us would admire the other for his cunning and prowess. If we had been on T.V., we would have gone out after one of the hearings for drinks.
By contrast, there are at least two prosecutors – one in Philadelphia and one here in D.C. – with whom I have apparently burned all bridges. If I were to run into one of these women in the hallway, they would hardly be able to look at me, much less say hello.
In one case, I dug up some pretty awful information about the prosecutor’s key witness, and she seemed to hold it against me when the court allowed me to introduce it. (I remember her stamping her feet and saying “but judge!” but that may just be my memory playing tricks on me.) In the other case, I not only had some incriminating evidence against her witness (that I was not able to get into evidence), I also embarrassed her in front of the court by accusing her of Brady violations.
Since I have never been a prosecutor, I am not able to see things from their perspective. At the same time, I am not sure they really understand what it means to be a criminal defense lawyer.
If I have something against one of your witnesses or against you personally that will help my client’s case, I am going to use it. It doesn’t matter if we are poker buddies or our spouses are best friends or our kids go to school together. That is my duty. It is like that story about the snake and the mouse (or maybe it is a lion): When the mouse helps the snake out of the trap by chewing through the net, the snake bites the mouse. How could you do that to me when I saved your life, the mouse asks the snake. I am a snake, the snake replies. That is what I do.
One of the many reasons I like being a criminal defense attorney is that our role is very straightforward. Our job is not to serve the interests of justice. It is not to curry favor with you or the court or to make friends. Our job, bounded only by the rules of professional responsibility, is to serve the interests of the client. We can be friends and colleagues as long as you understand that. Otherwise, we are left with that awkward moment as we pass each other in the hallway, each of us turning our gaze to avoid looking at the other.
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